Excerpt: - .....as to whether the loss was not due to wilful negligence and how the loss occurred, was upon the railway company; and as it did not adduce any evidence on the point he decreed the plaintiff's suit. this is clearly wrong. section 76 of the bail-ways act does not apply to contracts limiting the liability of the railway company under section 72 of the act. according to the risk note b, the plaintiff has to prove that the loss was due to wilful negligence of the defendant-company. this view of the law has been considered as hard; but the consignor has entered into this bargain with his eyes open and for a clear advantage to himself, namely, much less freight. the wording of the risk note form b, as it stands, clearly throws the onus on the plaintiff; but if any authority is needed for this.....

Judgment:

Suhrawardy, J.

1. In this case the suit was brought by the plaintiff against the East Indian Railway Company, for damages for loss of two tins of ghee and for shortage in weight of other two tins. The latter part of the claim was dismissed by the Court below. With regard to the claim for loss of two tins the Court below has given a decree to the plaintiff for Rs. 71-14-0 and costs. The goods were consigned under Risk Note in form B. The learned Small Cause Court Judge had held that, under Section 76 of the Railways Act, 1890, the burden of proof as to whether the loss was not due to wilful negligence and how the loss occurred, was upon the Railway Company; and as it did not adduce any evidence on the point he decreed the plaintiff's suit. This is clearly wrong. Section 76 of the Bail-ways Act does not apply to contracts limiting the liability of the Railway Company under Section 72 of the Act. According to the Risk Note B, the plaintiff has to prove that the loss was due to wilful negligence of the defendant-Company. This view of the law has been considered as hard; but the consignor has entered into this bargain with his eyes open and for a clear advantage to himself, namely, much less freight. The wording of the Risk Note form B, as it stands, clearly throws the onus on the plaintiff; but if any authority is needed for this view it may be found in a number of cases two of which may be mentioned here, viz., the cases of Sheo Barat Ram v. The Bengal North-Western Railway Co. [1912] 16 C.W.N. 766 and The East India Railway Co. v. Kanak Behary Haldar [1918) 22 C.W.N. 622. The view taken by the Court below is undoubtedly wrong and cannot be supported.

2. It is argued by Mr. Sen who appears for the plaintiff-opposite party that it is the duty of the defendant-Company to prove how the loss was occasioned and whether it was due to any cause other than their negligence or the negligence of their servants. Reliance was placed for this contention on the cases of The Central Indian Spinning and Weaving Co. v. G.I.P. Railway Co. A.I.R. 1923 Bom. 46 and Ghelabhai Punsi v. The East Indian Railway Co. A.I.R. 1922 Bom. 443. There are some expressions in those judgments no doubt which lend support to this contention. But so far as this Court is concerned, the matter has been set at rest by the decision which I have referred to above. After the pronouncement of the judgment by the Bombay High Court, which seems to have taken a different view on this question, the House of Lords had occasion to consider this point in the case of Smith Ltd. v. Great Western Railway [1922] 1 A.C. 178. There the note under which the goods were forwarded was similarly wooded as Risk Note B in this case. At page 183 of the report Lord Buckmaster expresses himself in these words: ' It is in my opinion a clause which throws upon the trader, before he can recover for any of the goods, the burden of proving in the first instance that the loss sustained arose from the wilful misconduct of the Company's servants. It is perfectly true that this results in holding that the apparent protection afforded to the trader is really illusory, it practically gives him no protection at all, for it is often impossible for a trader to know what it is that has caused the loss of his goods between the time when he delivered them into the hands of the Railway Company's servants and the time when they ought to have been delivered at the other end of the journey. The explanation of the loss is often within the exclusive knowledge of the Railway Company and for the trader to be compelled to prove that it was due to wilful misconduct on the part of the Railway Company's servants, is to call upon him to establish something which it may almost be impossible for him to prove. Nonetheless, that is the burden that he has undertaken and the question is whether in this case he has afforded any evidence which calls for an answer on the part of the Railway Company.' In that case the plaintiffs only proved that they delivered certain goods to the Railway Company for carriage; and he further put in the correspondence between himself and the Railway Company refusing to give any information regarding the circumstances within their knowledge associated with the loss of those goods. In those circumstances, their Lordships of the House of Lords held that the plaintiff had completely failed to prove his case. I think that under this authority, the question should be considered to have been finally set at rest.

3. I have been asked by the learned Vakil for the opposite party to send the case back to the Trial Court in order to enable him to adduce evidence for the discharge of the on us that lies upon him. I do not think that I am entitled to adopt that course. It does not appear that the plaintiff was prevented from adducing any evidence. No doubt, the view taken by the lower Court was in his favour but that is no ground for entitling a party at a subsequent stage when that view is found to be wrong, to adduce evidence in accordance with the view held by a higher Court. I do not, therefore, think that I should accede to his request.

4. The result is that this Rule is made absolute, the decree of the Court below set aside and the plaintiff's suit dismissed with costs. As the petitioner has succeeded in this Court he is entitled to costs of this Court. I assess the hearing-fee at one gold mohur.